We expect judges to be impartial and independent. That is why federal judges have life tenure. But we also demand that they respect democratic choices. They should enforce the policy decisions of the political branches—local and federal—unless the Constitution commands otherwise.

It’s that “unless” that causes the difficulty. The Constitution is the “supreme Law of the Land,” so, faced with a federal, state, or local law or policy that violates the Constitution, the judge must act. Judges would violate their oaths of office if, for example, they sat back and allowed the government to put people in jail for engaging in constitutionally protected activity (remember how the Commonwealth of Virginia threatened Mildred and Richard Loving with imprisonment for marrying across racial lines?) or permitted local officials to adopt policies that undermined the federal government’s exercise of its constitutional authority (think about Arizona’s ongoing attempt to adopt its own immigration policy). At the same time, judges equally violate their oaths of office if they strike down properly enacted laws because they think those laws are unwise or contravene their personal moral or religious codes.

….

The question is not whether federal judges should strike down popularly enacted policies, but when. This question has no mechanical answer. So let’s drop the vacuous accusations of activism and instead argue about the right answers to constitutional questions, and the real meaning of fidelity to the most important constitutional principles: liberty, equality, and opportunity for all.

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3 Comments

IT

December 13, 2010

Please let us remember that the judiciary exists to enforce the Constitution. The Constitution ensures that those in the minority have protections from the whim of the majority.

After all, Jim Crow laws were popular with the voters (hence the National Guard had to be called in to integrate schools), and bans against inter-racial marriage had the approval of 70% of Americans at the time of Loving v. Virginia.

The Constitution counters tyranny of the mob.

You want activism in judges? Consider Bush v. Gore, where a state recount was stopped. Or, most recently, the Citizens United decision that declared corporate interests enjoy freedom of speech. The Roberts Court sold America to corporate interests by essentially making corporate interests “people”.

Meanwhile, judges who actually defend the unpopular minority are accused of “activism”. I guess your definition of “activism” depends on whose ox is getting gored.

or is that Gored?

–susan forsburg

C. Wingate

December 14, 2010

The BR article already has an antique cast considering how easily Kagan’s nomination slipped through the senate. The real issue, of course, was making sure that eventually there will be enough justices on the court to enforce a finding that homosexuality is morally neutral– not that the decision will be phrased that way, but that is how everyone, on either side of the battle, expects it to be decided.

The big problem of American culture is the stubborn resistance of either side of some very big issues in their refusal to be persuaded. We can no longer pass legislation like the Civil Rights Acts of 1964 of 1968. The use of the judiciary to resolve these impasses may be tactically effective but has encouraged the climate of mutual disrespect that now obtains.

tgflux

December 14, 2010

The real issue, of course, was making sure that eventually there will be enough justices on the court to enforce a finding that homosexuality is morally neutral– not that the decision will be phrased that way, but that is how everyone, on either side of the battle, expects it to be decided.

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